Linkbar

17 July 2018

Copyright and TRAI's Recommendations for the Benefit of PWDs

The recommendations on making ICT accessible to persons with disabilities in relation to telecommunications, broadcasting and cable services released by TRAI on July 9, 2018, appear to have missed an opportunity to address the conflict between maximalist copyright practices and the aim of having content be accessible to persons with disabilities.

Provisions were made, in the 2012 amendment to the 1957 Copyright Act, to facilitate access by persons with disabilities to protected works. This was achieved through an exception to copyright infringement in what came to be Section 52(1)(zb) of the statute supported by a then-new compulsory licence in Section 31B which could be sought in cases where the exception proved to be inadequate.

In essence and sacrificing nuance for brevity, the exception to infringement began to allow the reproduction of protected works in accessible formats for personal use, education and research provided that the reproduction would be on ‘a non-profit basis but to recover only the cost of production’ if it were undertaken by an organisation the organisation ensuring that the accessible copies were used only by persons with disabilities and taking reasonable steps to prevent the entry of the accessible copies into ordinary channels of business. In cases where the reproduction was intended to be on a commercial basis, the statute envisaged having any person working for the benefit of persons with disabilities apply to the Copyright Board for a compulsory licence to publish works work in accessible formats for their benefit.

Additionally, Section 65A(2) of the Copyright Act, also introduced to the statute through the 2012 amendment, in relevant part, stated:

Nothing in sub-section (1) [which prohibits persons from circumventing effective technological measures applied for the purpose of protecting rights conferred by the Copyright Act with the intention of infringing them] shall prevent any person from,— (a) doing anything referred to therein for a purpose not expressly prohibited by this Act...

In effect, this generally allowed TPM to be legally circumvented to render works in formats accessible to PWDs provided one's actions fell under the scope of provisions of the 1957 Copyright Act which could be invoked for their benefit: in particular, Sections 52(1)(zb) and 31B.

Despite this, the 2018 TRAI recommendations do not go as far as they could have gone. They are not oblivious to having content be accessible to persons with disabilities: they refer to international practice and to Section 42 of the Rights of Persons with Disabilities (RPWD) Act, 2016, which states:

The appropriate Government shall take measures to ensure that,— (i) all contents available in audio, print and electronic media are in accessible format; (ii) persons with disabilities have access to electronic media by providing audio description, sign language interpretation and close captioning; (iii) electronic goods and equipment which are meant for every day use are available in universal design.

Unfortunately, the Recommendations limit themselves to focusing on such issues as ensuring that bills sent to consumers with disabilities are comprehensible, features such as those pertaining to magnification and contrast are available, and customer service is accessible. While all of these are important, they do not immediately counter the impediments to accessing content which of technological protection measures can cause to persons with disabilities.

The Recommendations do not change the law but they do not make it any easier for persons with disabilities to access "locked" content even within the framework of the law. There is, for example, no proposal through which a content owner may be obliged to help a person with a disability to access content which is protected not just by copyright but also by technological protection measures. This leaves persons with disabilities no worse off than they were but, had the Recommendations addressed the challenges which digital rights management poses, they could potentially have been left significantly better off.

Credit

Author

Subscribe in a Reader

Archives

Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

The Bollywood Amendments (2010-2012)

An examination of the provisions of the 2012 amendments to the 1957 Indian Copyright Act which affect the film and music industry. The paper takes into consideration the factual background in which the amendments were made and explores whether they are likely to realise their objectives.

"IN Content Law" is a personal blog which contains the views of its author, Nandita Saikia, alone unless otherwise explicitly stated. The author of the blog may have advised clients on subjects relating to those dealt with in this blog. However, the contents of this blog are not intended to reflect the opinion or position of any person (other than the author) unless otherwise explicitly stated.

The posts on this blog relate to copyright and content law from an Indian perspective. They are not professional advice, and should not be considered or construed as such. No action should be taken or omitted on the basis of the contents of this blog.

This blog neither creates an attorney-client relationship between the author and any visitor(s) or any other person(s), nor does it seek to do so. The material contained herein is solely for the purpose of academic discussion and is accessible on an as-is basis.

No representations or warranties are made as to accuracy, impartiality or fitness of the material on this blog for any use, and the author shall not be liable in any manner to any extent for the consequences of any action taken on the basis of any material herein. Further, no representations or warranties of any nature are made regarding any material which may be linked to from this blog, and the author shall not be responsible for the contents thereof.Revisions: The posts on this blog may be revised from time-to-time for editorial or other purposes without each revision being marked in the post itself.

Privacy: No comments made on this blog OR mail or documentation sent to the author by any person in connection with this blog (i.e. "Information") shall be treated as being private or confidential, with the exception of the eMail address of the sender. By sending / transmitting any Information directly to the author or by way of a blog comment, the sender authorises the author to use and/or reproduce it for ANY purpose she desires at any place or time. All senders / potential senders are requested to contact the author if they have any privacy concerns, preferably, before sending / transmitting any Information.